Saturday, April 21, 2007

Medical Malpractice (1)

I was very sorry and upset to read that "Flea" a fellow blogging physician has to review old textbooks because he is facing a lawsuit. I do not know anything about the case, but it encouraged me to write down my opinion on the medical liability system.

While still living in Germany I had heard about the ridiculous outgrowths of the American product liability system:

Woman is stupid enough to dry her poodle in the microwave oven. Microwave oven cooks poodle's liver, poor poodle dies.

In Germany she would have been the target of giggles and open laughter, of reprimands for killing her poodle and of instructions about what a microwave oven does and what you can use it for.
Not so here in the US. Here she wins lawsuit and becomes rich. What is the moral? Stupidity and ignorance are nothing to be ashamed of, you actually are rewarded for it. If you act stupid, the legal system does not consider you stupid. It declares you a "victim" and compensates you handily.

The spilled coffee of a McDonald customer is another outstanding example. While the woman should have received a few bucks for her dry cleaning bill and a reminder that fresh coffee is indeed hot - which is how everybody wants it and why we buy it in the first place -a jury awards her a few millions. Clumsiness makes you rich!

And these awards are especially aggravating, since they are a crude and insensitive slap in the face of any working person! I cannot emphasize this enough! Why should the woman with the spilled coffee get an amount of money that I as a physician will have to work for - day and night - for about 20 years? Have you ever thought about that lack of balance? What on earth could be worth 20 years of physician work? Can you fathom the loss of proportion? Can you even begin to understand how ridiculous these awards are?
It discourages you from being a hardworking, honest person. Instead it makes you think about other possibilities to become instantly rich by acting stupid and pinning the responsibility on someone else. What message do these awards send???

Another recent example that infuriated me was a Boston globe article about an oh-so-poor-and-suffering family who had lost a dog to an electrical shock, caused by an insufficently insulated manhole cover. The family and especially the poor child now was supposedly miserable and depressed. The article personalized the dog by addressing it by name only, never as "dog". The article contained a photos of the child with sad face and downcast eyes - can it get more cheesy? And the lawyer actually demanded a "compensation" of a one year salary of the CEO of Nstar! Excuse me, would the dog have earned that salary if it had not died? What were they smoking? That family deserved a bouque of flowers, a new dog and a "we are sorry"letter from NStar with the promise to fix the insulation on those manholes. And the state should go after NStar to make sure they solve the problem. The shocking part was that the Globe actually became an accomplice of the greedy lawyer due to the understanding and supportive undertone of their reporting.

A very sinister example is the true story of a couple in NY who was under psychiatric treatment after repeatedly abusing and harming their own child. Finally they KILL THEIR CHILD! Consequently they sue their treating psychiatrist for not stopping them from killing their own child.... AND THEY WIN.

This is the ultimate absurdity. It also is a brutal message that you pretty much can do whatever you want. You are just not responsible for what you do. This is truly sinister and is my best example that the legal system has gone wrong.

I think patients should be compensated for faulty medicine, but without the theatrics of lawyers wildly dramatizing during a courtroom show and without the immeasurable "pain and suffering" component.

Patients should be compensated according to a table or list. You loose the left hand and you earn such and such a year, you get such and such amount of money. Period. No jumping up and down of a lawyer in front of a jury, no tear-jerker videos or any such nonsense. You loose the right hand, you get such amount, you loose hearing, you get such and such. Period. End of story. It is simple, fast and fair. And it would save the state a lot of money.

Now, we already have such a system and we all know it. And it works. It is called "Workers comp". What stops us from doing something similar in medicine? "Patient's Comp", and for the field of Obstetrics "Mother's comp". Pedetermined compensation. Streamlined process. No lawyer BS. No theatrics - hey, if you tell me, that I may become a millionaire if just complain a lot - then of course I will declare that I suffered a lot, a whole lot and I will be depressed and unable to work and I will have incureed all kinds of losses etc etc. And I will describe my suffering in multiple colors and I will look depressed and worn out when I show up in the courtroom. Nobody can prove me wrong, it's subjective and cannot be measured.

On the other hand "Patient's Comp" would be fair and fast.

There are other approaches of course. Lawyers could be prohibited from becoming partners of the plaintiff as they are now and could be forced to reimbursement by the hour instead of being paid with by contingency.

And, hey, what about reimbursing lawyers the same way we get reimbursed - with a global fee? That would solve 95% of all liability issues right away. And the lawyers would hurry up like you have never seen before. No endlessly drawn out pondering and discussing and describing and musing and debating and thinking about commas and single words and all the implications of tangential issues....

And, another approach is simply not having malpractice insurance. It is well known that lawyers go after the deep pockets, and our malpractice insurance contracts with 1/3 or 2/6 million coverage is an open invitation to sue. Greed drives the malpractice misery. Try getting a lawyer to sue a physician with no insurance - "sorry, you do not have a case". And I am not making this up. There are areas in the US where you can practice - very happily I may say - without carrying malpractice insurance. One of the consequences: colleagues in those areas get sued a lot less, and I mean a lot less! I have spoken to lawyers in those areas. They were very unhappy about their situation. Needless to say that I could hardly contain my happiness about their situation.

But not having insurance will ultimately damage the occasional truly mishandled patient. Therfore my preferred solution are special health courts, where decisions are made by judges who actually understand about medicine plus a compensation model that discourages courtroom theatrics and is based on predetermined tables and list. Something comparable to Workman's Comp.

What is so hard to understand about what I just wrote?
Nothing is hard to understand, and we all know who keeps us from having a rational system.

In the meantime I recommend the following:

1. Asset protection, to keep your personal assets out of reach of greedy lawyers. You essentially have to be pennyless on paper. Very possible. Dramatically decreases the incentive of a lawyer to sue you. The first thing they check, even before considering the merit of the suit, is the plain and simple money question "What are the defendant's assets? How much is he or she worth"

2. The lowest insurance amount allowed by law, taking away some of the incentive to be sued.

3., a company founded by a neurosurgeon fed up with sleazebag "experts" who will testify anything the plaintiff's lawyer wants. They send warning letters to the lawyer as soon as the process starts and also to the plaintiff's expert witnesses as soon as they are named. The expert witnesses are notified that they will be prosecuted in several ways if their testimony is less than evidence based. Professional complaints filed with their professional society, legal claims etc. Go to their website
And it is not expensive! Works best as a prophylactic tool.

4. Consider relocating your practice to a state that allows you to practice without professional liability insurance. Massachusetts does not! Practicing in a state that allows "self insurance" of physicians would save me personally 70,000 a year. Not pocket change. I certainly would know what to do with the money. And I certainly would prefer this amount to go towards the education of my child instead to the education of a greedy lawyer's child.

More to follow!


Anonymous said...

The hyperbole in this post is unbelievable. What about the doctor who amputates thw wrong leg, or leaves a patient on the operating table to do his banking?

ObGynThoughts said...

Dear Anonymous:
The patient who has his wrong leg amputated should be compensated according to a predetermined value and the doctor who amputates the wrong leg should be punished. Nobody had any doubts about that or will ever doubt that.
Leaving a patient with an assistant and go banking for 15 or 20 minutes is very poor style, but most likely will not hurt the patient. Sometimes we wait for 10 minutes until the result of a pathology examination is finished -and nothing ever happens. The only thing is the extension of anesthesia time, which is fairly innocuous.

Many of these compensation are out of line and out of range with what others earn by working.
Spilled coffee on your lap is not worth several million. That is the true hyperbole.

75-80% of lawsuits against doctors are found to be without merit. How is that for hyperbole?

Your Matthias Muenzer, MD

Garrett said...

Actually, McDonald's didn't lose the case because the defendant burned herself: they lost it because there was documentation showing that they had been warned of the danger, but had made the decision that it would be cheaper to settle as they went along.

"The testimony of Mr. Appleton, the McDonald's executive, didn't help the company, jurors said later. He testified that McDonald's knew its coffee sometimes caused serious burns, but hadn't consulted burn experts about it. He also testified that McDonald's had decided not to warn customers about the possibility of severe burns, even though most people wouldn't think it possible. Finally, he testified that McDonald's didn't intend to change any of its coffee policies or procedures, saying, "There are more serious dangers in restaurants."

Mr. Elliott, the juror, says he began to realize that the case was about "callous disregard for the safety of the people."

Next for the defense came P. Robert Knaff, a human-factors engineer who earned $15,000 in fees from the case and who, several jurors said later, didn't help McDonald's either. Dr. Knaff told the jury that hot-coffee burns were statistically insignificant when compared to the billion cups of coffee McDonald's sells annually. "

ObGynThoughts said...

Dear Garrett:
thank you for the details on the issue. I still think the big picture is the same, it is simply ridiculous to give someone the equivalent of several years of hard work of an extremely trained or efficient or capable person just because you burned yourself? Warning or not, I honestly do not care. A burn and you get millions? That is an remains insane, no matter what the details are.
And more than that. It is an insult to people who earn their money by working everyday. You learn that your personal day by day effort, into which you have put effort, work, hope, years of studying, uncountable sleepless nights, all your work is worth almost nothing compared to getting coffee spilled on your lap! It is a horrible message that the justice system sends! That is what I mean! That is what I want to say! Do you realize that? Or are you too caught up in the details and minutia of actual law to understand how wrong it has become?